By Ruth Brown, Idaho Reports
Editor’s note: This story contains graphic content that may be upsetting to some readers.
With his execution nearing, attorneys for a terminally-ill Idaho man on death row ask for a commutation of his sentence, outlining the horror he faced as a child.
Gerald Pizzuto Jr. was convicted of a double murder in Idaho County more the 35 years ago. Pizzuto was convicted of first-degree murder in the 1985 deaths of Berta Herndon and her nephew Delbert Herndon outside of McCall.
Pizzuto did have two co-defendants, William Odom and James Rice, who were given lesser sentences for their roles in the crime.
In a 288-page petition for clemency filed by the Idaho Federal Defenders Office last month, attorneys outline Pizzuto’s life, his traumatic experiences, and his terminal illness as reasons to allow the 64-year-old terminally ill man to die a natural death.
The Commission of Pardons and Parole is set to review the petition on Tuesday, May 18, in executive session.
How commutation works
In the state of Idaho, commutation is the process in which a person’s sentence could be modified. The process would not vacate a person’s felony conviction.
A petition is reviewed in executive session by the Commission of Pardons and Parole. It is at the commission’s discretion on whether to schedule commutation hearings. The Commission will make a recommendation to the governor regarding the request for commutation, and the governor has 30-days to approve it.
In Pizzuto’s case, the governor has less time due to the scheduled June 2 execution date.
In commutation petitions, if the recommendation is not approved within 30 days, it is deemed denied by the governor.
Pizzuto’s plea for mercy
The petition leads with Pizzuto’s rapidly failing health, stating he is “knocking on death’s door.”
Pizzuto has stage 4 terminal bladder cancer and has been on hospice care for a year, according to the petition. He is confined to a wheelchair and suffers from serious heart disease.
In December of 2019, his physician stated he likely had less than 12 months to live. According to the petition, he also has coronary obstructive pulmonary disease (COPD), and Type 2 diabetes with related nerve damage to his legs and feet. He has survived two heart attacks and has four stents around his heart.
“The idea that such a sick, feeble man presents enough of a danger to society that he must be executed is far-fetched,” according to the petition. “And it is made even more implausible by Mr. Pizzuto’s record in prison, which shows that he has not received a single disciplinary write-up in the last ten years.”
A childhood of terror
Pizzuto’s petition outlines a violent childhood and abuse he endured, starting at as young as age 5 or 6.
He claims his step-father regularly beat him, tied him up, and raped him. Sometimes, Pizzuto said his step-father would allow other men to rape Pizzuto or his siblings in exchange for $10 or $20.
Pizzuto and his siblings say his step-father would beat him until he was bleeding, unconscious or having convulsions, sometimes hitting him with objects such as a 2×4 piece of lumber.
“The tragedy of Jerry’s life is that nobody was able to intervene and save him from the brutality that tortured and broke him as a child, not even his own mother,” the petition states.
The petition goes on to outline brain trauma that Pizzuto endured over his life through accidents and abuse.
“Mr. Pizzuto’s brain is damaged. It is smaller than normal, with a higher than usual amount of damaged tissue. He has deficits in impulse control, language skills, verbal fluency, memory, reasoning and problem solving, and poor decision-making skills,” the petition states. “Jerry has a long history of seizures and organic brain damage that significantly affected his mental capacity and ability to function in everyday life.”
Pizzuto’s sisters were interviewed about their childhood and they all shared similar experiences, often referring to their parents as “monsters.”
One recalled being forced to sleep in a dog house with him. Sometimes Pizzuto would try to interfere to protect the girls from his step-father, taking a beating for them.
“He’d not only hit Jerry with a belt. He’d, he’d punch him, beat him up, take him out to the garage, and tie him like this (raises hands above head with wrists crossed), tie him up, to the pole, face first this way, and rape him, beat him,” one of Pizzuto’s sisters is quoted saying in the petition. “Like I said, there were times that Jerry would be so bad, his testicles were swollen so big my mom would have to put onions on ‘em to bring the swelling down.”
The petition includes transcripts with interviews from Pizzuto’s siblings, who describe under oath the daily acts of physical and sexual violence they endured at young ages.
The petition concludes by outlining that Pizzuto is now a dying man who has spent more than half of his life in a prison cell, and who suffers from the effects of cancer daily.
“He asks that you please grant him a hearing, so he may have the chance to show why mercy and commutation of his death sentence to life without parole is warranted,” the petition states. “Let his imminent death from natural causes take him, without going through an unnecessary, expensive, resource-consuming and trauma-inducing execution.”
Issues around co-defendants
Attorneys representing Pizzuto have raised questions around why his co-defendants received lighter sentences while he received a death sentence.
On May 10, attorneys filed a petition for extraordinary writ with the U.S. Supreme Court, addressing the issues.
Pizzuto’s defense alleges that on January 16, 1986, Rice’s attorneys met with Judge George Reinhardt and Prosecutor Henry Boomer at Crossroads Restaurant for an hour and a half to broker the deal for Rice, guaranteeing that he would serve no more than 15 years if he put the blame on Pizzuto.
Three months later, while testifying against Pizzuto’s trial, Rice said Pizzuto beat the victims by himself, and that it was Pizzuto’s idea to rob them. Rice also was asked several times whether he was promised leniency, which he denied. He went even further by testifying he could spend the rest of his life in prison. Rice repeated this testimony during his own sentencing hearing, which was held by Reinhardt a day after Reinhardt sentenced Pizzuto to death.
Rice told jurors Pizzuto tied up the victims and struck them in the head with a hammer, creating a “bashing hollow sound.” In its recent petition to the Supreme Court, Pizzuto’s defense argues that the testimony was the most damaging to Pizzuto’s case.
In 2005, Rice acknowledged the deal, which led Pizzuto’s attorneys to the billing records and handwritten notes kept by Rice’s attorneys, showing details about the meeting at the restaurant and the plea agreement that was reached over breakfast.
According to the Supreme Court petition, Pizzuto’s attorneys state “The prosecutor and trial judge in Mr. Pizzuto’s case secretly orchestrated a key witness’s devastating testimony against him in return for an undisclosed promise to mete out a lenient sentence.”
At a minimum, attorneys asked for a hearing on the issue. They argue Pizzuto should not be executed before he has an evidentiary hearing.
“The Court should grant habeas relief or an extraordinary writ and vacate Mr. Pizzuto’s convictions and death sentence or remand for an evidentiary hearing,” the petition concludes.
Rice also said the crimes were Odom’s idea. Odom and Rice were both released from Idaho custody after serving 12 years. Pizzuto,meanwhile, was sentenced to death.
Odom died in 2014, and Rice is in prison in California on unrelated charges.